UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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:
PAUL D. CEGLIA,
:
:
Plaintiff,
:
:
v.
:
:
MARK ELLIOT ZUCKERBERG and
:
FACEBOOK, INC.,
:
:
Defendants.
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Civil Action No. 1:10-cv-00569-RJA
DECLARATION OF
DR. ALBERT LYTER III
I, Albert H. Lyter, Ph.D, am competent to testify to the matters set forth herein and make
this declaration of my own personal knowledge and belief.
1.
I respectfully submit this declaration in support of Defendants' Reply in Support
of Defendants' Cross-Motion to Compel Compliance with the July 1 Order, dated August 15,
2011.
2.
I respectfully refer to Exhibit A of the Declaration I submitted in support of
Defendants' Motion for Expedited Discovery, dated June 1, 2011, with respect to my
qualifications and résumé.
3.
Prior to Defendants' sampling of the Hard-Copy Documents authorized by the
Order and the Court's Hard-Copy Inspection Protocol, dated July 1, 2011 (the "Hard-Copy
Protocol") (Doc. No. 84), both Defendants' experts and Plaintiff's experts had ample opportunity
to create high-resolution scanned images of two hard-copy documents produced by Plaintiff—
the "Work for Hire" Agreement (the "Purported Contract") and a six-page document ("HardCopy Document 2") produced by Plaintiffs. I understand that both Defendants' experts and
Plaintiff's experts created high-resolution scanned images of those documents, exactly as they
were produced by Plaintiff and before any ink was extracted from the documents. A true and
correct copy of a high-resolution scanned image of the Purported Contract taken by Defendants'
expert Gerald M. LaPorte on Saturday, July 16, 2011 is attached hereto as Exhibit A. A true and
correct copy of a high-resolution scanned image of Hard-Copy Document 2 taken by Mr.
LaPorte on Saturday, July 16, 2011 is attached hereto as Exhibit B.
4.
I participated in Defendants' examination and sampling of the Purported Contract
and Hard-Copy Document 2 on Tuesday, July 19, 2011.
5.
On Monday, July 25, 2011, I accompanied Defendants' counsel to the offices of
Edelson McGuire LLC, in Chicago, Illinois, where I observed Plaintiff's experts, Larry Stewart
and Erich Speckin, conduct their examination and sampling of the Purported Contract and HardCopy Document 2.
6.
In my declaration dated August 4, 2011, I described the specific number of
samples that remained available to be extracted and analyzed from the various ink portions of the
Purported Contract and Hard-Copy Document 2 at the conclusion of Plaintiff's sampling. See
Declaration of Dr. Albert Lyter III (Doc. No. 98), ¶¶ 10-11. Specifically, based on my
observation and professional judgment:
A.
There are currently at least 30 additional samples available from the
interlineation on page 1 of the Purported Contract.
B.
There are currently at least 4 additional samples available from the
purported "MZ" initials on page 1 of the Purported Contract.
C.
There are currently at least 8 additional samples available from the
purported "PC" initials on page 1 of the Purported Contract.
D.
There are currently at least 30 additional samples available from the
purported Ceglia signature on page 2 of the Purported Contract.
E.
There are currently at least 25 additional samples available from the
purported Zuckerberg signature on page 2 of the Purported Contract.
F.
There are currently at least 40 samples available from the interlineation on
page 4 of Hard-Copy Document 2.
G.
There are currently at least 4 samples available from the purported "MZ"
initials on page 4 of Hard-Copy Document 2.
2
H.
There are currently at least 8 samples available from the purported "PC"
initials on page 4 of Hard-Copy Document 2.
I.
There are currently at least 30 samples available from the purported Ceglia
signature on page 6 of Hard-Copy Document 2.
J.
There are currently at least 30 samples available from the purported
Zuckerberg signature on page 6 of Hard-Copy Document 2.
7.
As I explained in my declaration dated August 4, 2011, I understand that counsel
for all parties agreed that Defendants' experts could initially take a limited number of samples
from the Purported Contract and Hard-Copy Document 2 but would be permitted to take
additional samples at the conclusion of Plaintiff’s sampling.
8.
Defendants' experts now require additional samples from the ink of the Purported
Contract and Hard-Copy Document 2 to conduct further analysis. Specifically, Defendants'
experts require:
A.
At least 8 more samples from the interlineation on page 1 of the Purported
B.
At least 2 more samples from the purported "MZ" initials on page 1 of the
Contract.
Purported Contract.
C.
At least 4 more samples from the purported "PC" initials on page 1 of the
Purported Contract.
D.
At least 8 more samples from the purported Ceglia signature on page 2 of
the Purported Contract.
E.
At least 8 more samples from the purported Zuckerberg signature on page
2 of the Purported Contract.
F.
At least 8 more samples from the interlineation on page 4 of Hard-Copy
G.
At least 2 more samples from the purported "MZ" initials on page 4 of
Document 2.
Hard-Copy Document 2.
3
H.
At least 4 more samples from the purported "PC" initials on page 4 of
Hard-Copy Document 2.
I.
At least 8 more samples from the purported Ceglia signature on page 6 of
Hard-Copy Document 2.
J.
At least 8 more samples from the purported Zuckerberg signature on page
6 of Hard-Copy Document 2.
9.
These additional samples are required, in part, to conduct extremely sensitive and
precise chemical testing that may be able to determine whether the ink in the Purported Contract
and Hard-Copy Document 2 likely dates from 2003.
10.
As described above, there are far more samples available to be extracted from the
relevant sections of the Purported Contract and Hard-Copy Document 2 than Defendants' experts
require.
11.
I have reviewed the declaration of Plaintiff's expert Larry Stewart, dated August
9, 2011, in which Mr. Stewart attests that additional sampling of the Purported Contract and
Hard-Copy Document 2 "will compromise the physical integrity of the contract." Declaration of
Larry F. Stewart (Doc. No. 106-14), ¶¶ 5, 7.
12.
Mr. Stewart's concern is unfounded, particularly given the availability of high-
resolution scanned images of the Purported Contract and Hard-Copy Document 2 made prior to
the parties' sampling of the documents. As Mr. Stewart is well aware, forensic document
examiners often extract a greater percentage of the ink available in a document than Defendants'
experts propose to extract here.
13.
I have reviewed Exhibit B to Mr. Stewart's Declaration, which Mr. Stewart attests
are "true and correct copies" of the Purported Contract "post-sampling." Declaration of Larry F.
Stewart (Doc. No. 106-14), ¶ 4.
14.
Exhibit B to Mr. Stewart's Declaration does not accurately reflect the amount of
ink available to be sampled from the Purported Contract at the conclusion of Plaintiff's sampling.
4

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